International Union of Operati v. Village of Lincolnshire ( 2018 )


Menu:
  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    Nos. 17-1300 & 17-1325
    INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 399, et
    al.,
    Plaintiffs-Appellees, Cross-Appellants,
    v.
    VILLAGE OF LINCOLNSHIRE, et al.,
    Defendants-Appellants, Cross-Appellees.
    ____________________
    Appeals from the United States District Court for the
    Northern District of Illinois, Eastern Division.
    No. 16 C 2395—Matthew F. Kennelly, Judge.
    ____________________
    ARGUED MARCH 27, 2018 — DECIDED SEPTEMBER 28, 2018
    ____________________
    Before WOOD, Chief Judge, and BAUER and KANNE, Circuit
    Judges.
    WOOD, Chief Judge. The National Labor Relations Act and
    its amendments establish a national system of industrial-labor
    relations. The question before us in this case is whether a mu-
    nicipality—specifically, the Village of Lincolnshire, Illinois—
    can add to or change that system through a local ordinance.
    Lincolnshire passed an ordinance that purports to do three
    2                                           Nos. 17-1300 & 17-1325
    things: (1) forbid the inclusion of union-security or hiring-hall
    provisions in collective bargaining agreements, (2) forbid the
    mandatory use of hiring halls, and (3) forbid dues checkoff
    arrangements. The Village asserted that it had the right to do
    so under section 14(b) of the National Labor Relations Act,
    29 U.S.C. § 164(b), which permits states to bar compulsory un-
    ion membership as a condition of employment. Lincolnshire
    contends that, as a political subdivision of Illinois, it is entitled
    to exercise the state’s power in this respect.
    Whether a local law, rather than a state-wide law, falls
    within the scope of section 14(b) is a subject that has divided
    other courts. The Sixth Circuit, in United Automobile, Aerospace
    & Agricultural Implement Workers of America Local 3047 v. Har-
    din County, Kentucky, 
    842 F.3d 407
    (6th Cir. 2016), agreed with
    the Village that it does, but only for union-security clauses.
    The Sixth Circuit found hiring-hall and dues-checkoff provi-
    sions comparable to those in the Lincolnshire ordinance to be
    outside the scope of section 14(b) and thus preempted by the
    NLRA. On the other side of the fence, Kentucky’s highest
    court has held that section 14(b) does not permit local legisla-
    tion on the topic of either union-security or mandatory use of
    hiring-halls or dues-checkoffs. See Kentucky State AFL-CIO v.
    Puckett, 
    391 S.W.2d 360
    (Ky. Ct. App. 1965). 1 With all due re-
    spect to our sister circuit, on the union-security clause issue
    we find ourselves persuaded by the position that Kentucky
    1 Until 1976, the highest court of Kentucky was the Court of Appeals
    of Kentucky. Pursuant to the Amendment of May 29, 1975, effective at the
    beginning of 1976, Kentucky restructured its courts, and so the highest
    court now is the Supreme Court of Kentucky.
    Nos. 17-1300 & 17-1325                                                       3
    took, although our reasons differ somewhat. 2 We agree with
    both courts that localities may not address the subjects of hir-
    ing halls or dues checkoffs. We thus conclude that the author-
    ity conferred in section 14(b) does not extend to the political
    subdivisions of states and affirm the judgment of the district
    court holding Lincolnshire’s ordinance preempted and with-
    out force.
    I
    In 2015 Lincolnshire adopted Ordinance Number 15-3389-
    116 (“the Ordinance”). Section 4 of the Ordinance bans union-
    security agreements within the Village by forbidding any re-
    quirement that workers join a union, compensate a union fi-
    nancially, or make payments to third parties in lieu of such
    contributions. Section 4(B)–(D). Section 4 also bars any re-
    quirement that employees “be recommended, approved,
    2  This case reveals an interesting gap in Circuit Rule 40(e), which re-
    quires circulation to the full court when a panel decision would create a
    conflict with another circuit. The rule says nothing about the creation of a
    conflict with the highest court of a state, notwithstanding the fact that Su-
    preme Court Rule 10(a) includes cases in which a United States court of
    appeals “has decided an important federal question in a way that conflicts
    with a decision by a state court of last resort.” One goal of Circuit Rule
    40(e) is to ensure that this court does not lightly create the type of conflict
    that can be resolved only through intervention by the Supreme Court. A
    conflict in the circuits is certainly one such situation, see S. Ct. Rule 10(a)
    clause 1, but as just noted, so is a conflict between a court of appeals and
    a state court of last resort, see S. Ct. Rule 10(a) clause 2. Given the current
    language of Circuit Rule 40(e), however, because this opinion would cre-
    ate a conflict with the Sixth Circuit, we are circulating it to all members of
    the court in regular active service, even though it does not create the kind
    of conflict described in Supreme Court Rule 10(a). No judge in regular ac-
    tive service wished to hear this case en banc. Judge Flaum did not partici-
    pate in consideration of this hearing en banc.
    4                                       Nos. 17-1300 & 17-1325
    referred, or cleared for employment by or through a labor or-
    ganization.” Section 4(E). Finally, section 5 prohibits employ-
    ers from making any payments to unions on a worker’s behalf
    except pursuant to a “signed written authorization” that
    “may be revoked by the employee at any time by giving writ-
    ten notice.” Section 5. The Ordinance provides both civil rem-
    edies and criminal penalties for its violation.
    A collection of unions sued Lincolnshire, asserting that the
    National Labor Relations Act of 1935 (“Wagner Act”), as
    amended by the Labor Management Relations Act of 1947
    (“Taft-Hartley Act”), preempts the Ordinance. (The references
    in this opinion to the NLRA mean the Act as amended.) Their
    complaint asserts that sections 4(B)–(D), 4(E), and 5 of the Or-
    dinance violate the Supremacy Clause and 42 U.S.C. § 1983.
    The district court resolved the case on motions for
    summary judgment. It first found that all of the unions had
    standing to challenge the membership and fee provisions of
    section 4(A)–(D) and the checkoff regulation of section 5, but
    that only one of the unions could challenge the prohibition of
    hiring halls in section 4(E). We find the court’s analysis in this
    respect to be sound, and there is no need to say more, since
    neither side has appealed from these rulings. The district
    court then held all three provisions to be preempted by the
    NLRA. In No. 17-1300, Lincolnshire has appealed from this
    determination. The district court also ruled that the unions
    failed to state a claim under section 1983, because it
    understood them to be asserting Garmon, rather than
    Machinists, preemption claims. See Golden State Transit Corp.
    v. City of L.A., 
    493 U.S. 103
    , 110–13 (1989). Relying on that
    ruling, it prevented the unions from claiming attorney’s fees
    Nos. 17-1300 & 17-1325                                            5
    under 42 U.S.C. § 1988. In No. 17-1325, the unions have cross-
    appealed the latter decision.
    II
    A
    Before turning to the heart of the case, we note that the
    unions’ invocation of the Supremacy Clause was proper in
    this instance. Although the Supremacy Clause does not create
    a freestanding private right of action, Armstrong v. Exceptional
    Child Ctr., Inc., 
    135 S. Ct. 1378
    , 1384 (2015), a plaintiff may “sue
    to enjoin unconstitutional actions by state and federal offic-
    ers” in violation of supreme federal law by invoking courts’
    equitable powers or through the comparable mechanisms
    provided by the Declaratory Judgment Act. Restoration Risk
    Retention Grp., Inc. v. Gutierrez, 
    880 F.3d 339
    , 346 (7th Cir. 2018)
    (quoting 
    Armstrong, 135 S. Ct. at 1384
    ). That is what the unions
    have done here.
    B
    If it were not for section 14(b), the NLRA would preempt
    all three aspects of Lincolnshire’s Ordinance. State law must
    give way to federal law, the Supreme Court has explained, in
    a number of instances: when Congress has enacted a statute
    expressly preempting state law; when there is “a framework
    of regulation so pervasive ... that Congress left no room for
    the States to supplement it or where there is a federal interest
    ... so dominant that the federal system will be assumed to pre-
    clude enforcement of state laws on the same subject”; and
    when state laws conflict with federal law, either because com-
    pliance with both is a physical impossibility, or because “the
    challenged state law stands as an obstacle to the accomplish-
    ment and execution of the full purposes and objectives of
    6                                        Nos. 17-1300 & 17-1325
    Congress.” Arizona v. United States, 
    567 U.S. 387
    , 399 (2012)
    (internal quotation marks and citations omitted); see Rice v.
    Santa Fe Elevator Corp., 
    331 U.S. 218
    , 230 (1947).
    The first of these possibilities is usually called field
    preemption, and we begin there. The Supreme Court has con-
    firmed that section 8 of the NLRA occupies the field for any
    activities that it “may fairly be assumed” fall within the ambit
    of the NLRA. San Diego Bldg. Trades Council v. Garmon,
    
    359 U.S. 236
    , 244 (1959). The negotiation and adoption of the
    types of provisions at issue here—union-security clauses, hir-
    ing-hall rules, and dues checkoffs—are such activities. E.g.,
    Amalgamated Ass’n of St., Elec. Ry. & Motor Coach Emps. of Am.
    v. Lockridge, 
    403 U.S. 274
    , 284 (1971); see also 
    id. at 296
    (noting
    that, with respect to union-security clauses, “federal concern
    is pervasive and its regulation complex”); Oil, Chem. & Atomic
    Workers, Int’l Union v. Mobil Oil Corp., 
    426 U.S. 407
    , 409 (1976).
    Section 8(a)(3) of the NLRA bars, as an unfair labor prac-
    tice, any “discrimination in regard to … employment or any
    term or condition of employment to encourage or discourage
    membership in any labor organization.” It also provides that
    nothing in the NLRA “or in any other statute of the United
    States, shall preclude” requiring new hires to join a union
    within 30 days, unless specified exceptions apply. 29 U.S.C.
    § 158(a)(3). That is enough to conclude—again, putting sec-
    tion 14(b) to the side for a moment—that the union-security
    provisions of the Ordinance impermissibly encroach on a
    field that has been occupied by section 8 of the NLRA. See
    Sweeney v. Pence, 
    767 F.3d 654
    , 661 (7th Cir. 2014) (finding
    analogous provisions in an Indiana statute governed union
    membership within the meaning of section 8). The same is
    true of the hiring-hall and dues-checkoff provisions, although
    Nos. 17-1300 & 17-1325                                          7
    our emphasis below will be on union-security clauses, as that
    is the only point of disagreement between the Sixth Circuit
    and us.
    The Supreme Court has recognized that laws banning un-
    ion-security agreements clash with section 8(a)(3) and thus
    can be saved only if they fall within the scope of section 14(b):
    While § 8(a)(3) articulates a national policy that certain
    union-security agreements are valid as a matter of fed-
    eral law … [s]ection 14(b) allows a State or Territory to
    ban agreements “requiring membership in a labor or-
    ganization as a condition of employment.” We have
    recognized that with respect to those state laws which
    § 14(b) permits to be exempted from § 8(a)(3)’s national
    policy “[t]here is … conflict between state and federal
    law; but it is a conflict sanctioned by Congress with di-
    rections to give the right of way to state laws … . ”
    Mobil Oil 
    Corp., 426 U.S. at 416
    –17 (quoting Retail Clerks Int’l
    Ass’n, Local 1625 v. Schermerhorn, 
    375 U.S. 96
    , 103 (1963)) (al-
    teration in original). The question before the Court in Mobil
    Oil was whether Texas’s right-to-work laws could override an
    agency-shop requirement covering unlicensed seamen who
    were hired in Texas, but who spent “the vast majority of their
    working hours on the high 
    seas.” 426 U.S. at 410
    . The Court
    concluded that Texas law did not reach this far and that “pre-
    dominant job situs is the controlling factor in determining
    whether, under § 14(b), a State can apply its right-to-work
    laws to a given employment relationship.” 
    Id. at 420.
    Most
    (though not all) of the seamen’s work was done on the high
    seas, “outside the territorial bounds of the State of Texas.” 
    Id. 8 Nos.
    17-1300 & 17-1325
    This was enough to conclude that the exception to national
    labor policy recognized in section 14(b) was not triggered.
    In the absence of applicable legislation under section
    14(b), the question whether to have a union-security agree-
    ment constitutes a mandatory subject of bargaining under the
    NLRA, and refusal to bargain may amount to an unfair labor
    practice. NLRB v. Gen. Motors Corp., 
    373 U.S. 734
    , 744–45
    (1963); Atlas Metal Parts Co., Inc. v. NLRB, 
    660 F.2d 304
    , 308
    (7th Cir. 1981); see also Pleasantview Nursing Home, Inc. v.
    NLRB, 
    351 F.3d 747
    , 759 (6th Cir. 2003); Eastex, Inc. v. NLRB,
    
    437 U.S. 556
    , 569 (1978). In states that have adopted right-to-
    work laws, however, the tables are turned: not only is there
    no duty to bargain over these clauses; the clauses themselves
    are forbidden as a matter of state law. See, e.g., 
    Sweeney, 767 F.3d at 671
    .
    Illinois does not have a state-wide right-to-work law. Per-
    haps that is why Lincolnshire passed the Ordinance. But it is
    not such a simple matter to say that the state’s power to pass
    such a law has been, or may be, delegated to its subdivisions.
    Sometimes that is true, and sometimes it is not. Lincolnshire
    is a home-rule city, and so we assume for present purposes
    that it has broad regulatory powers. Lincolnshire concedes,
    however, that if Illinois were to pass a specific statute forbid-
    ding the state’s political subdivisions to legislate in this area,
    then it would be out of luck. We put that state-law issue to one
    side, however, since the broader question is whether as a mat-
    ter of federal law section 14(b) authorizes political subdivi-
    sions to act in this area.
    A local union-security provision would seriously under-
    mine the objectives of the NLRA in any state that has not
    taken advantage of section 14(b) to forbid agency shops. The
    Nos. 17-1300 & 17-1325                                           9
    NLRA “favors permitting [union-security] agreements unless
    a State or Territory with a sufficient interest in the relationship
    expresses a contrary policy via right-to-work laws.” Mobil Oil
    
    Corp., 426 U.S. at 420
    . It does this in part to avoid free-riding.
    
    Id. at 416.
    Recognition of this aim has motivated the Supreme
    Court to monitor carefully the scope of states’ authority to
    override that policy. See 
    id. at 420
    (holding that even though
    Texas may have had more contacts than any other state with
    the employment relationship at issue, its right-to-work law
    did not apply because the predominant situs of the employ-
    ment was not in Texas). Lincolnshire’s Ordinance undermines
    that congressional goal by banning any collective bargaining
    agreement designed to ensure that workers shoulder their
    portion of the costs of representation. If the State of Illinois
    had passed a right-to-work law, as 28 other states have done,
    a different congressional goal would be implicated: the one
    expressed in section 14(b) requiring deference to the state’s
    choice. But as we have said, Illinois has done no such thing.
    The hiring hall aspect of Lincolnshire’s ordinance also
    runs into problems with preemption. Like the union-security
    part, it falls within the purview of section 8. Farmer v. United
    Bhd. of Carpenters & Joiners of Am., Local 25, 
    430 U.S. 290
    , 303
    n.11 (1977) (“Discrimination in hiring hall referrals constitutes
    an unfair labor practice under §§ 8(b)(1)(A) and 8(b)(2) of the
    NLRA.”); see also Local 357, Int’l Bhd. of Teamsters, Chauffeurs,
    Warehousemen & Helpers of Am. v. NLRB, 
    365 U.S. 667
    , 675
    (1961) (noting that section 8 permits hiring halls other than
    those which are discriminatory). State regulation of hiring
    halls is therefore blocked by field preemption. E.g., United
    
    Auto., 842 F.3d at 421
    –22; Laborers’ Int’l Union of N. Am., Local
    No. 107 v. Kunco, Inc., 
    472 F.2d 456
    , 458 (8th Cir. 1973); NLRB
    v. Tom Joyce Floors, Inc., 
    353 F.2d 768
    , 770–71 (9th Cir. 1965).
    10                                      Nos. 17-1300 & 17-1325
    The use of hiring-halls routinely has been treated as a manda-
    tory subject of bargaining and thus hiring-hall provisions are
    affirmatively permitted by the NLRA. E.g., Clarett v. Nat’l
    Football League, 
    369 F.3d 124
    , 140–41 (2d Cir. 2004); Sw. Steel &
    Supply, Inc. v. NLRB, 
    806 F.2d 1111
    , 1113 (D.C. Cir. 1986);
    NLRB v. Sw. Sec. Equip. Corp., 
    736 F.2d 1332
    , 1338 (9th Cir.
    1984); NLRB v. Houston Chapter, Associated Gen. Contractors of
    Am., Inc., 
    349 F.2d 449
    , 452 (5th Cir. 1965); Houston Chapter,
    Associated Gen. Contractors of Am., Inc., 
    143 N.L.R.B. 409
    , 415
    (1963). Lincolnshire’s attempt to prohibit them requires un-
    ions and employers to choose between complying with na-
    tional or municipal law and thus creates an actual conflict.
    Finally, Lincolnshire’s dues-checkoff regulation is
    preempted. Dues checkoff provisions are mandatory subjects
    of bargaining. E.g., Tribune Publ’g Co. v. NLRB., 
    564 F.3d 1330
    ,
    1333 (D.C. Cir. 2009); NLRB v. J.P. Stevens & Co., 
    538 F.2d 1152
    ,
    1165 (5th Cir. 1976); United Steel Workers of Am. v. NLRB,
    
    390 F.2d 846
    , 849 (D.C. Cir. 1967). Their negotiation is thus
    subject to section 8, and federal law requires state law to yield.
    
    Garmon, 359 U.S. at 244
    . In this respect too the Lincolnshire
    Ordinance threatens an actual conflict with federal law: it per-
    mits employers to remit dues only pursuant to fully revocable
    checkoffs, while federal law requires employers to bargain in
    good faith over checkoff proposals that bind both parties for
    up to one year.
    Section 302 of the Taft-Hartley Act comprehensively regu-
    lates the payment of fees by employers, including payments
    to unions. 29 U.S.C. § 186. This includes a provision allowing
    for checkoffs to pay union fees under certain circumstances.
    
    Id. § 186(c)(4).
    The statutory scheme represents a careful bal-
    ancing of interests and leaves no room for regulation—
    Nos. 17-1300 & 17-1325                                         11
    complementary or otherwise—by subnational units of gov-
    ernment. See United 
    Auto., 842 F.3d at 421
    (“While Hardin
    County maintains that its ordinance regulation of dues
    checkoff provisions does not actually conflict with that of the
    LMRA [Labor Management Relations Act], the fact remains
    that the activity is subject to regulation under the LMRA. Al-
    lowing dual regulation under federal and state law would un-
    dermine Congress’s purposes and contravene field preemp-
    tion.”); SeaPAK v. Indus., Technical & Prof’l Emps., Div. of Nat’l
    Mar. Union, 
    300 F. Supp. 1197
    , 1200 (S.D. Ga. 1969), summarily
    aff’d 
    423 F.2d 1229
    (5th Cir. 1970).
    We conclude, therefore, that the Ordinance’s provisions
    invade territory occupied by federal law. Lincolnshire can
    prevail only if we accept the argument that section 14(b) au-
    thorizes not just states, but also any of a state’s political sub-
    divisions, to override the background federal rules in any of
    the three ways set forth in the Ordinance.
    III
    Our starting point is the language of the statute. The Taft-
    Hartley Act added section 14(b) to the NLRA in 1947. See Pub.
    L. No. 86-257, Title VII, § 701(a). That provision reads as fol-
    lows:
    (b) Agreements requiring union membership in vio-
    lation of State law
    Nothing in this subchapter shall be construed as au-
    thorizing the execution or application of agreements
    requiring membership in a labor organization as a con-
    dition of employment in any State or Territory in
    12                                      Nos. 17-1300 & 17-1325
    which such execution or application is prohibited by
    State or Territorial law.
    29 U.S.C. § 164(b). Section 14(b) is the exclusive source of
    states’ authority to pass right-to-work laws. Mobil Oil 
    Corp., 426 U.S. at 413
    n.7. Thus, this case does not turn on whether
    states—as a domestic matter—may delegate some or all of
    their own powers to localities. Rather, it depends on whether,
    as a matter of statutory interpretation, Congress meant to in-
    clude local laws when it referred to “State or Territorial law.”
    The only serious issue before us relates to the agency-shop
    aspect of the Ordinance. As the Sixth Circuit recognized, sec-
    tion 14(b) does not authorize any government—state or lo-
    cal—to restrict the use of hiring halls or checkoffs. United
    
    Auto., 842 F.3d at 421
    –22. We noted the same thing in Sweeney
    when we observed that section 14(b) “applies to post-hiring
    union security arrangements,” not to “pre-hiring practices”
    such as the use of hiring 
    halls. 767 F.3d at 663
    n.8. As we ex-
    plained in Sweeney, using a hiring hall does “not require pro-
    spective employees to do anything more than temporarily
    visit union facilities during the hiring process.” 
    Id. The appli-
    cant need not make any continuing commitment to the union
    if and when he secures employment. Other circuits to con-
    sider the issue have come to the same conclusion. Simms v.
    Local 1752, Int’l Longshoremen Ass’n, 
    838 F.3d 613
    , 618–20
    (5th Cir. 2016); Kunco, 
    Inc., 472 F.2d at 458
    –59; United 
    Auto., 842 F.3d at 421
    –22; Tom Joyce Floors, 
    Inc., 353 F.2d at 771
    .
    Checkoff provisions, though they govern relationships
    with the union after hiring, are also different from “member-
    ship” within the meaning of section 14(b). They do not, in and
    of themselves, require employees either to join unions or to
    make any payments to them. Rather, they facilitate payments
    Nos. 17-1300 & 17-1325                                         13
    once employees have themselves made the decision to con-
    tribute to a union or to accept a job requiring that contribu-
    tion. To state the matter differently, filling out a checkoff form
    does not determine union membership either way: “The dues
    checkoff section of the [Taft-Hartley] Act … far from being a
    union security provision, seems designed as a provision for
    administrative convenience in the collection of union dues.
    An employee could revoke the dues deduction authorization,
    and yet continue to pay dues personally.” NLRB v. Atlanta
    Printing Specialties & Paper Prods. Union 527, 
    523 F.2d 783
    , 786
    (5th Cir. 1975). In short, checkoff provisions do not compel
    workers to pay anything. They thus do not constitute “agree-
    ments requiring membership in a labor organization” as un-
    derstood by this court in 
    Sweeney. 767 F.3d at 660
    –61. Here,
    too, the circuits are in agreement. NLRB v. Shen-Mar Food
    Prods., Inc., 
    557 F.2d 396
    , 399 (4th Cir. 1977); see also United
    
    Auto., 842 F.3d at 421
    –22; Atlanta Printing Specialties & Paper
    Prods. Union 
    527, 523 F.2d at 786
    .
    This takes us to the central question on appeal: does sec-
    tion 14(b) permit a state to delegate to some or all of its subdi-
    visions the power to ban agency shops at the local level? A
    devotee of the “plain language” approach to statutory inter-
    pretation might think that the answer to this question must be
    “no,” because nothing in the language of section 14(b) refers
    to local legislation: it speaks exclusively of “State or Territo-
    rial law.” To state the obvious, municipalities are not states,
    and municipal law applies only within the regulating munic-
    ipality, varying from place to place. And indeed, Congress
    sometimes calls out political subdivisions by name. For exam-
    ple, the NLRA defines “employer” to exclude “any State or
    political subdivision thereof.” 29 U.S.C. § 152(2). Elsewhere,
    the Act authorizes the director of the NLRB to “establish
    14                                      Nos. 17-1300 & 17-1325
    suitable procedures for cooperation with State and local me-
    diation agencies.” 29 U.S.C. § 172(c). See Dep’t of Homeland Sec.
    v. MacLean, 
    135 S. Ct. 913
    , 919 (2015) (word “law” did not in-
    clude regulations in statutory section that did not mention
    “rules” or “regulations,” unlike other parts of the same law).
    But Congress sometimes allows states to entrust matters
    arising under federal laws to lower levels of government
    without saying anything on the subject. In the field of anti-
    trust, for instance, the Supreme Court has concluded that the
    Sherman Act does not displace clearly established and ac-
    tively supervised state regulations of economic activity. See
    Parker v. Brown, 
    317 U.S. 341
    (1943). But Parker does not insist
    that qualifying legislation comes exclusively at the state level.
    To the contrary, as cases such as Town of Hallie v. City of Eau
    Claire, 
    471 U.S. 34
    (1985), demonstrate, certain municipal leg-
    islation also qualifies (with a few tweaks not pertinent here).
    We prefer, therefore, not to rely on the literal terms of the
    statute here. Labor law is one of the rare areas in which Con-
    gress has preempted the field, and so states have no power in
    the area except with respect to their own employees. True,
    section 14(b) cedes some power back to the states, but it makes
    no sense to say that states can re-delegate that power. As we
    explain in more detail below, no one would be able to figure
    out what is legal and what is not. The situation with Medicaid
    is similar: states have the power to choose whether to opt into
    Medicaid, but that power must be exercised by the state as a
    whole and cannot be redelegated. See 42 U.S.C. § 1396a(a)(1)
    (state plan for medical assistance must be in effect in all polit-
    ical subdivisions of the state and be mandatory in them).
    Construed the way the Village would have it, the Ordi-
    nance would put employers in and around the Village in an
    Nos. 17-1300 & 17-1325                                        15
    impossible position. An employer with offices within the Vil-
    lage whose workers’ predominant job situs is outside the Vil-
    lage in a jurisdiction without a comparable law would risk
    committing an unfair labor practice if it refused to bargain over
    an agency-shop provision. The same employer would risk
    civil or criminal penalties if it misjudged “predominant” job
    situs and did bargain over an agency-shop rule, if most of its
    work was done within the Village. Over what period should
    the employer make this assessment: a week? a month? a year?
    The employer’s duty to bargain or prohibition on bargaining
    might shift from day to day, or month to month, or job to job.
    Construing section 14(b) to permit re-delegation would
    create other administrative nightmares as well. There were
    38,910 general purpose governments in the United States in
    2012, and more than 90,000 general and special-purpose gov-
    ernments combined. Carma Hogue, Government Organization
    Summary Report: 2012, U.S. CENSUS BUREAU 1 (2013),
    https://www.census.gov/content/dam/Census/library/publi-
    cations/2013/econ/g12-cg-org.pdf, as compared to just 50
    states and a handful of territories. Illinois alone has almost
    7,000 local governments. 
    Id. Not only
    are these jurisdictions
    more numerous than the states by several orders of magni-
    tude, but they are also smaller. In many trades or industries,
    the job sites of workers might bring them to numerous mu-
    nicipalities every week. Even a single plant might cross mu-
    nicipal lines. Lincolnshire, as of the 2010 Census, had a popu-
    lation of 7,275 people, and covered an area of 4.68 square
    miles in Lake County, Illinois. The idea that businesses oper-
    ate exclusively within its borders strikes us as fanciful. Is an
    employee subject to an agency agreement one day, when his
    job takes him to nearby Chicago, and not the next day, when
    he happens to be working on-site in Lincolnshire? What if
    16                                      Nos. 17-1300 & 17-1325
    neighboring Buffalo Grove has the opposite law? The sensible
    conclusion is that section 14(b) operates only at the state level.
    This reveals another problem with the Ordinance. It does
    not limit its effect to employees whose primary work situs is
    in the Village, as required by Mobil Oil. That case, as we noted
    earlier, held that “under § 14(b), right-to-work laws cannot
    void agreements permitted by § 8(a)(3) when the situs at
    which all the employees covered by the agreement perform
    most of their work is located outside of a State having such
    
    laws.” 426 U.S. at 414
    . There is no reason why this principle
    would not apply to political subdivisions.
    Lincolnshire responds that employers already must com-
    ply with separate state laws, so why assume that they could
    not do the same with municipal laws? The answer is simple:
    at some point a difference in degree becomes a difference in
    kind. Complying with 7,000 different laws in Illinois alone is
    quite different from making border adjustments between Illi-
    nois and Indiana, two states with different policies governing
    agency shops. It would be impossible as a practical matter for
    a collective bargaining agreement to account for each jurisdic-
    tion’s ordinances. Could an employer be held liable for com-
    mitting an unfair labor practice for refusing to engage in a
    separate round of horse-trading with workers in each locale?
    Has a Lincolnshire employer who just landed a lucrative con-
    tract in Chicago committed a criminal violation in Lincoln-
    shire because it has agreed to join a multi-employer bargain-
    ing unit with an agency-shop rule that is legal at the work si-
    tus? As a practical matter, would bargaining units be limited
    to individual municipalities? What happens to employees
    who move regularly between job sites? Is a manufacturer pre-
    cluded from shifting its employees between assembly lines if
    Nos. 17-1300 & 17-1325                                        17
    they would cross into a different municipality’s right-to-work
    régime?
    Permitting local legislation under section 14(b) threatens
    “a crazy-quilt of regulations.” The “consequence of such di-
    versity for both employers and unions would be to subject a
    single collective bargaining relationship to numerous regula-
    tory schemes thereby creating an administrative burden and
    an incentive to abandon union security agreements.”
    New Mexico Fed’n of Labor, United Food & Commercial Workers
    Union Local 1564 v. City of Clovis, 
    735 F. Supp. 999
    , 1002–03
    (D.N.M. 1990).
    Interpreting the words “State or Territory” in section 14(b)
    to permit delegation to local units of government would thus
    do violence to the broad structure of labor law—a law that
    places great weight on uniformity. Construing the words
    “State or Territory” to preclude delegation assures that only a
    limited number of these conflicts exists. It avoids adding an
    onerous and ever-shifting new factual layer to the inquiry.
    Similarly, it avoids introducing a new legal inquiry into the
    mix: did the locality have the authority to pass the ordinance
    in question as a matter of state law? Some units of local gov-
    ernment have home-rule authority, others do not; some are
    special-purpose, others are general-purpose. The variations
    both within states and from state to state are endless.
    The consequences for the uniformity of national labor law
    would be catastrophic. The Supreme Court has said that Con-
    gress enacted the NLRA to create national uniformity in labor
    law, NLRB v. Nash–Finch Co., 
    404 U.S. 138
    , 144 (1971) (quoting
    Garner v. Teamsters, Chauffeurs & Helpers Local Union, 
    346 U.S. 485
    , 490 (1953)); see also Cannon v. Edgar, 
    33 F.3d 880
    , 883 (7th
    Cir. 1994), and to minimize industrial strife, see NLRB v. Jones
    18                                      Nos. 17-1300 & 17-1325
    & Laughlin Steel Corp., 
    301 U.S. 1
    , 41, 45 (1937). While section
    14(b) represents a decision that some variation at the state and
    territorial level is acceptable, that does not mean that national
    uniformity itself has been abandoned as a goal. Notably,
    while the parties cite extensively to the legislative history of
    the Wagner and Taft-Hartley Acts, the congressional debates’
    repeated references to safeguarding state authority contain no
    mention of local autonomy.
    Against these concerns, the Sixth Circuit, in United Auto.,
    and Lincolnshire offer in support of the possibility of delega-
    tion under section 14(b) two decisions from the Supreme
    Court in other areas of law, Wisconsin Public Intervenor v.
    Mortier, 
    501 U.S. 597
    (1991), and City of Columbus v. Ours Gar-
    age & Wrecker Service, Inc., 
    536 U.S. 424
    (2002). Neither Mortier
    nor Ours Garage, however, abandoned the principle that the
    meaning of words in a statute “depends upon the character
    and aim of the specific provision involved.” District of Colum-
    bia v. Carter, 
    409 U.S. 418
    , 420 (1973) (holding that same
    phrase, “State or Territory,” encompasses the District of Co-
    lumbia when used in 42 U.S.C. § 1982 but excludes the District
    when used in the context of a prior version of 42 U.S.C. § 1983,
    
    id. at 421–32).
        Mortier concerned the Federal Insecticide, Fungicide, and
    Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq. At that time,
    FIFRA stated that “[a] State may regulate the sale or use of
    any federally registered pesticide or device in the State, but
    only if and to the extent the regulation does not permit any
    sale or use prohibited by this subchapter.” 7 U.S.C. § 136v. It
    expressly defined “State” to include states, the District of Co-
    lumbia, and various U.S. territories, without any mention of
    subdivisions. 
    Id. at §
    136(aa). The Court noted, however, that
    Nos. 17-1300 & 17-1325                                         19
    nothing in either the statute or its legislative history suggested
    preemption of local regulation. 
    Mortier, 501 U.S. at 607
    –08,
    611–12, 614–16. Indeed, it found clues in the statutory lan-
    guage indicating that the exclusion of local authorities would
    have created tensions within the Act:
    [For example,] § 136f(b) requires manufacturers to pro-
    duce records … upon the request of any employee of
    the EPA “or of any State or political subdivision, duly
    designated by the Administrator.” Section 136u(a)(1),
    however, authorizes the Administrator to “delegate to
    any State ... the authority to cooperate in the enforce-
    ment of this [Act] through the use of its personnel.” If
    the use of “State” in FIFRA impliedly excludes subdi-
    visions, it is unclear why the one provision would al-
    low the designation of local officials for enforcement
    purposes while the other would prohibit local enforce-
    ment authority altogether.
    
    Mortier, 501 U.S. at 608
    –09 (emphasis added).
    Mortier concluded that for FIFRA, the failure to mention
    political subdivisions was not enough to support an inference
    that Congress had forbidden all local regulation. This, as we
    already have noted, contrasts sharply with the scope of the
    NLRA and the Court’s consistent interpretation of it. Moreo-
    ver, Mortier asked not whether the mention of “State” in sec-
    tion 136v authorized localities to regulate matters otherwise
    beyond their remit, but rather whether that word alone for-
    bade them from exercising such power. 
    Id. at 614.
    In other
    words, the first question in Mortier was whether FIFRA had
    any preemptive effect at all. Federal statutes do not supersede
    a state’s “historic police powers ... unless that was the clear
    and manifest purpose of Congress,” 
    id. at 605
    (quoting Rice,
    20                                        Nos. 17-1300 & 
    17-1325 331 U.S. at 230
    ), and, as a baseline assumption, political sub-
    divisions are understood as “components” of the state for
    purposes of the police power. 
    Id. at 608;
    see also 
    id. at 607–08
    (citing, inter alia, Hunter v. Pittsburgh, 
    207 U.S. 161
    , 178 (1907)).
    That is why the mere reference to states in section 136v gave
    no reason to suspect that Congress implicitly intended to sup-
    plant local regulation—let alone that this silence was a clear
    and manifest statement of such a purpose.
    Mortier did suggest that the Supreme Court would still
    have concluded that section 136v affirmatively authorized the
    delegation to local governments of the authority to imple-
    ment FIFRA (an environmental law regulating pesticide use).
    The ability to regulate noxious substances has been part of the
    police power since time out of mind. The Supreme Court as-
    sumes that “the historic police powers of the States” are not
    to be superseded by federal law unless that was “the clear and
    manifest purpose of Congress.” Altria Group, Inc. v. Good,
    
    555 U.S. 70
    , 77 (2008). The Court found no such purpose in
    Mortier. The federal labor laws, as we already have explained,
    are a different matter altogether. As the Kentucky Court of
    Appeals 
    indicated, 391 S.W.2d at 362
    , we should construe ex-
    ceptions to the NLRA carefully, with an eye both to the scope
    of the exception and to its effect on the remainder of the law.
    Ours Garage is also distinguishable. There an express
    preemption provision in the Interstate Commerce Act gener-
    ally forbade “a State, political subdivision of a State, or polit-
    ical authority of 2 or more States” to adopt regulations “re-
    lated to a price, route, or service of any motor carrier … with
    respect to the transportation of property.” 49 U.S.C.
    § 14501(c)(1). The law said, however, that it would not “re-
    strict the safety regulatory authority of a State with respect to
    Nos. 17-1300 & 17-1325                                          21
    motor vehicles.” 
    Id. at §
    14501(c)(2)(A). Despite the omission
    of any reference to political subdivisions in the latter clause,
    the Supreme Court held that states could delegate their pre-
    served authority to localities. Ours 
    Garage, 536 U.S. at 428
    –29.
    As the Court wrote, “[a]bsent a clear statement to the con-
    trary, Congress’ reference to the ‘regulatory authority of a
    State’ should be read to preserve, not preempt, the traditional
    prerogative of the States to delegate their authority to their
    constituent parts.” 
    Id. at 429.
        Ours Garage acknowledged that it presented a “closer call”
    than was the case in Mortier. 
    Id. at 433.
    The general preemp-
    tion provision (49 U.S.C. § 14501(c)(1)) “explicitly
    preempt[ed] regulation both by a State and by a political sub-
    division of a State.” 
    Id. Yet there
    were other parts of the statute
    that said nothing about political subdivisions. The Court con-
    cluded as follows:
    We acknowledge that § 14501(c)’s disparate inclu-
    sion [and] exclusion of the words “political subdivi-
    sions” support an argument of some force, one that
    could not have been made in Mortier. Nevertheless,
    reading § 14501(c)’s set of exceptions in combination,
    and with a view to the basic tenets of our federal sys-
    tem pivotal in Mortier, we conclude that the statute
    does not provide the requisite clear and manifest indi-
    cation that Congress sought to supplant local author-
    
    ity. 536 U.S. at 434
    (internal quotation marks omitted).
    Ours Garage, like Mortier, concerned the scope of an ex-
    press preemption provision and therefore (as the excerpt
    above shows) was governed by the rule that the Court
    22                                      Nos. 17-1300 & 17-1325
    requires a “clear and manifest indication that Congress
    sought to supplant local authority.” 
    Id. Section 14(b)
    plays a
    different function. It is not the source of NLRA preemption;
    rather, it is an exception to the general preemption established
    in the Act for the field of labor relations. The question is only
    how much subnational authority does section 14(b) restore.
    Ours Garage depended heavily on an extensive contextual
    analysis that looked to other parts of section 14501(c)—provi-
    sions that have no corollary in the NLRA. E.g., Ours 
    Garage, 536 U.S. at 434
    –36. It is also significant that Ours Garage con-
    cerned a local safety regulation, which is the type of law that
    raises concerns about undue interference with the states’ po-
    lice power. 
    Id. at 437,
    438. Although states once used their po-
    lice powers to enact sweeping anti-labor laws, for nearly a
    century the regulation of unions has rested with the federal,
    rather than state, government. Finally, the Court emphasized
    that the Interstate Commerce Act primarily concerned itself
    with economic regulation, while the local ordinance ad-
    dressed traditional safety concerns. 
    Id. at 440–42.
    Municipali-
    ties could legislate on the latter topic without directly offend-
    ing the statute’s central goals. In contrast, Lincolnshire’s reg-
    ulation addresses collective bargaining head-on—the central
    concern of the NLRA.
    Lincolnshire finally argues that, because local govern-
    ments are creatures of the state, they can always exercise under
    federal law any powers Congress has given to the state, if the
    state in turn has delegated those powers to its subdivisions.
    
    Hunter, 207 U.S. at 178
    . As we already have pointed out, how-
    ever, the rule is more nuanced: sometimes Congress allows
    redelegation, as in Mortier, Ours Garage, and Parker, and some-
    times it does not, as in the Medicaid example we gave. The
    Nos. 17-1300 & 17-1325                                        23
    aspect of labor law governed by section 14(b) of the NLRA,
    we conclude, falls in the latter category.
    IV
    We thus agree with the unions that the district court cor-
    rectly found preemption of the Ordinance with respect to all
    three of the aspects at issue: the agency shop, the hiring hall,
    and the dues checkoff. This disposes of Appeal No. 17-1300.
    As we noted briefly at the outset, the unions filed a cross-ap-
    peal, No. 17-1325, in which they sought damages under
    42 U.S.C. § 1983 for Lincolnshire’s violation of their rights.
    Such a claim is possible only if the unions were able to show
    preemption under the Supreme Court’s Machinists decision,
    which recognizes that some state legislation is preempted be-
    cause it interferes with Congress’s intention that the conduct
    involved be left to the “free play of economic forces.” Int’l
    Ass’n of Machinists & Aerospace Workers v. Wis. Employment Re-
    lations Comm’n, 
    427 U.S. 132
    , 140–41 (1976) (internal quotation
    marks omitted). Garmon preemption, in contrast, addresses
    the problem of state regulation that would interfere with the
    primary jurisdiction of the National Labor Relations Board.
    
    Id. at 138.
    It does not involve the kind of personal right that
    would support a claim under section 1983.
    We conclude that the union’s attempt to bring a Machinists
    claim comes too late. In the district court, the unions’ brief in
    support of their own motion for summary judgment made no
    mention of section 1983. While a page of their brief in opposi-
    tion to Lincolnshire’s competing motion did touch on the sub-
    ject, it mentioned neither Garmon nor Machinist preemption
    and thus made no evident effort to situate the claim in the lat-
    ter camp. “[A] party [that] fails to adequately present an issue
    to the district court has waived the issue for purposes of
    24                                      Nos. 17-1300 & 17-1325
    appeal … even though the issue may have been before the dis-
    trict court in more general terms.” Fednav Int’l Ltd. v. Cont’l
    Ins. Co., 
    624 F.3d 834
    , 841 (7th Cir. 2010). We cannot say that
    the unions fairly presented their position to the district court.
    Nor can we fault the district court for failing to anticipate the
    unions’ arguments for why Machinist preemption applies. We
    thus see no reason to disturb the district court’s judgment in
    this respect either on the merits or with regard to attorneys’
    fees.
    V
    Section 14(b) of the NLRA does not permit local govern-
    ments on their own authority to ban agency-shop, hiring hall,
    or checkoff agreements. In the absence of an applicable state
    law with respect to the agency-shop, as here, all three
    measures are preempted by federal law. Finally, the unions
    failed to properly preserve their claim under section 1983, and
    so the district court did not err by dismissing it. We therefore
    AFFIRM the judgment of the district court.
    

Document Info

Docket Number: 17-1325

Judges: Wood

Filed Date: 9/28/2018

Precedential Status: Precedential

Modified Date: 10/1/2018

Authorities (31)

Farmer v. United Brotherhood of Carpenters & Joiners of ... , 97 S. Ct. 1056 ( 1977 )

Department of Homeland Security v. MacLean , 135 S. Ct. 913 ( 2015 )

Hunter v. City of Pittsburgh , 28 S. Ct. 40 ( 1907 )

National Labor Relations Board v. General Motors Corp. , 83 S. Ct. 1453 ( 1963 )

Eastex, Inc. v. National Labor Relations Board , 98 S. Ct. 2505 ( 1978 )

Golden State Transit Corp. v. City of Los Angeles , 110 S. Ct. 444 ( 1989 )

New Mexico Federation of Labor v. City of Clovis , 735 F. Supp. 999 ( 1990 )

Altria Group, Inc. v. Good , 129 S. Ct. 538 ( 2008 )

District of Columbia v. Carter , 93 S. Ct. 602 ( 1973 )

jay-cannon-thomas-carey-stevie-powell-and-service-employees , 33 F.3d 880 ( 1994 )

pleasantview-nursing-home-inc-petitionercross-respondent-v-national , 351 F.3d 747 ( 2003 )

Parker v. Brown , 63 S. Ct. 307 ( 1943 )

National Labor Relations Board v. Houston Chapter, ... , 349 F.2d 449 ( 1965 )

National Labor Relations Board v. Tom Joyce Floors, Inc. , 353 F.2d 768 ( 1965 )

Town of Hallie v. City of Eau Claire , 105 S. Ct. 1713 ( 1985 )

National Labor Relations Board v. Atlanta Printing ... , 523 F.2d 783 ( 1975 )

City of Columbus v. Ours Garage & Wrecker Service, Inc. , 122 S. Ct. 2226 ( 2002 )

Atlas Metal Parts Co., Inc. v. National Labor Relations ... , 660 F.2d 304 ( 1981 )

Southwestern Steel & Supply, Inc. v. National Labor ... , 806 F.2d 1111 ( 1986 )

national-labor-relations-board-and-international-association-of-bridge , 736 F.2d 1332 ( 1984 )

View All Authorities »